State ex rel. Oregon R. & Nav. Co. v. Bradshaw

• Decision Date: 18 July 1911
• Citation: 117 P. 284,59 Or. 279
• Parties: STATE ex rel. OREGON R. & NAVIGATION CO. v. BRADSHAW, Circuit Judge.
• Court: Oregon Supreme Court

117 P. 284

59 Or. 279

STATE ex rel. OREGON R. & NAVIGATION CO. v. BRADSHAW, Circuit Judge.

Supreme Court of Oregon

July 18, 1911

Original proceedings for mandamus by the State, on the relation of the Oregon Railroad & Navigation Company, petitioner, against W.L. Bradshaw, Judge of the Circuit Court for Wasco County. Demurrer to the return sustained, with leave to defendant to amend.

By the initiative process at the general election in November, 1910 the Constitution of this state was so amended that the Supreme Court may in its own discretion take original jurisdiction in mandamus proceedings. Under the sanction of this amendment and proceeding according to the direction of section 614, L.O.L., the Chief Justice of this court, upon the petition of the Oregon Railway & Navigation Company issued an alternative writ of mandamus, directed to the circuit court of the state of Oregon for the county of Wasco and to Hon. W.L. Bradshaw, its presiding judge, the recitals of which are as follow: "Whereas, it has been made sufficiently to appear to our said court by the affidavit of the petitioner herein, the Oregon Railroad & Navigation Company, that heretofore there was begun in the said circuit court of the state of Oregon for the county of Wasco an action by the said petitioner against I.H. Taffe and M.E Taffe, his wife, and the Celilo Improvement Company, for the condemnation of certain lands then and now lying in the county of Wasco, state of Oregon, and that in said action such proceedings have been had as that heretofore, and on the 25th day of June, 1910, a verdict was returned in the said cause assessing damages for the taking of the said lands at the sum of $11,000.00; and, whereas, it has been sufficiently made to appear to our said court that no judgment has been entered in the said cause, and that on the 12th day of September, 1910, and upon demand thereto by the plaintiff in the said action, the Oregon Railroad & Navigation Company you, the said circuit court of the state of Oregon for the county of Wasco, refused to enter judgment in the said cause and it now being made sufficiently to appear that no judgment will be entered in the said cause except by the command of our said court; and, whereas, it is sufficiently made to appear by the said affidavit of the petitioner that the petitioner desires to appeal from the judgment to be pronounced in the said cause."

The command of the writ was that upon service of the same upon the court it cause to be entered a judgment in the action therein described, or show cause why the same had not been done. The return to the writ is in the following language: "That the said court was not authorized to enter the judgment asked for or any judgment of said court, save and except the order which was entered and could not lawfully enter the judgment asked for because of the provisions of the Constitution and laws of the state of Oregon prohibiting said judgment, and because the sum of money assessed by the jury in said case as the damage for the taking of said strip of property was never paid into court as required by law and by the Constitution of the state of Oregon." The petitioner filed a general demurrer to this return.

W.W. Cotton and Snow & McCamant, for petitioner.

Bennett & Sinnott, for respondent.

BURNETT J. (after stating the facts as above).

Under section 620, L.O.L., for the purposes of this case, the writ the return, and the demurrer constitute the pleadings. Although the argument at the hearing went largely into what kind of judgment ought to be directed by a peremptory writ, it is not stated in the alternative writ what were the terms of the judgment demanded by the petitioner. On the other hand, in the return it alludes to an order which was entered without reciting its terms. On the demurrer we can only determine the sufficiency of the return. The writ recites that judgment was refused and this is not denied. The question is whether a sufficient excuse has been given...